vrfS'fs.-V  /■  /i'-'  , 


i MR.  JUSTICE  HOLMES 


HARVARD  LAW  ASSOCIATION 


OF  NEW  YORK,  ON 
FEBRUARY  15,  lbi3 


L161— H41 


SPEECH  OF  MR.  JUSTICE  HOLMES. 


Mr.  Chairman  and  gentlemen,  vanity  is  the  most  philosophical  of 
those  feelings  that  we  are  taught  to  despise.  For  vanity  recognizes 
that  if  a man  is  in  a minority  of  one  we  lock  him  up,  and  therefore 
longs  for  an  assurance  from  others  that  one’s  work  has  not  been  in 
vain.  If  a man’s  ambition  is  the  thirst  for  a power  that  comes  not 
from  office  but  from  within,  he  never  can  be  sure  that  any  happiness 
is  not  a fool’s  paradise — he  never  can  be  sure  that  he  sits  on  that 
other  bench  reserved  for  the  masters  of  those  who  know.  Then,  too, 
at  least  until  one  draws  near  to  70  one  is  less  likely  to  hear  the  trum- 
pets than  the  rolling  fire  of  the  front.  I have  passed  that  age,  but 
I still  am  on  the  firing  line,  and  it  is  only  in  rare  moments  like  this 
that  there  comes  a pause,  and  for  half  an  hour  one  feels  a trembling 
hope.  They  are  the  rewards  of  a lifetime’s  work. 

But  let  me  turn  to  more  palpable  realities — to  that  other  visible 
court  to  which  for  10  now  accomplished  years  it  has  been  my  oppor- 
tunity to  belong.  We  are  very  quiet  there,  but  it  is  the  quiet  of  a 
storm  center,  as  we  all  know.  Science  has  taught  the  world  skepti- 
cism, and  has  made  it  legitimate  to  put  everything  to  the  test  of 
proof.  Many  beautiful  and  noble  reverences  are  impaired,  but  in 
these  days  no  one  can  complain  if  any  institution,  system,  or  belief 
is  called  on  to  justify  its  continuance  in  life.  Of  course  we  are  not 
excepted,  and  have  not  escaped.  Doubts  are  expressed  that  go  to 
our  very  being.  Not  only  are  we  told  that  when  Marshall  pronounced 
an  act  of  Congress  unconstitutional  he  usurped  a power  that  the  Con- 
stitution did  not  give,  but  we  are  told  that  we  are  the  representatives 
of  a class — a tom  of  the  money  power.  I get  letters,  not  always 
anonymous,  intimating  that  we  are  corrupt.  Well,  gentlemen,  I 
admit  that  it  makes  my  heart  ache.  It  is  very  painful,  when  one 
spends  all  the  energies  of  one’s  soul  in  tr3dng  to  do  good  work,  with 
no  thought  but  that  of  solving  a problem  according  to  the  rules  by 
y^hich  one  is  bound,  to  know  that  many  see  sinister  motives  and  would 
be  glad  of  evidence  that  one  was  consciously  bad.  But  we  must  take 
such  things  philosophically  and  try  to  see  what  we  can  learn  from 
hatred  and  distrust,  and  whether  behind  them  there  may  not  be  some 
germ  of  inarticulate  truth. 

The  attacks  upon  the  court  are  merely  an  expression  of  the  unrest 
that  seems  to  wonder  vaguely  whether  law  and  order  pay.  When 
the  ignorant  are  taught  to  doubt  they  do  not  know  what  they  safely 
may  believe.  And  it  seems  to  me  that  at  this  time  we  need  educa- 
tion in  the  obvious  more  than  investigation  of  the  obscure.  I do  not 
see  so  much  immediate  use  in  committees  on  the  high  cost  of  living 
and  inquiries  how  far  it  is  due  to  the  increased  production  of  gold, 
how  far  to  the  narrowing  of  cattle  ranges  and  the  growth  of  popula- 
tion, how  far  to  the  bugaboo,  as  I do  in  bringing  home  to  people  a few 

3 


1 


4 SPEECH  OF  ME.  JUSTICE  HOLMES. 

social  and  economic  truths.  Most  men  think  dramatically,  not  quan- 
titatively, a fact  that  the  rich  would  be  wise  to  remember  'more  than 
they  do.  We  are  apt  to  contrast  the  palace  with  the  hovel,  the  dinner 
at  Sherry’s  with  the  workingman’s  pail,  and  never  ask  how  much 
or  realize  how  little  is  withdrawn  to  make  the  prizes  of  success. 
(Subordinate  prizes — since  the  only  prize  much  cared  for  by  the  pow- 
erful is  power.  The  prize  of  the  general  is  not  a bigger  tent,  but 
command.)  We  are  apt  to  think  of  ownership  as  a terminus,  not  as 
a gateway— and  not  to  realize  that  except  the  tax  levied  for  personal 
consumption  large  ownership  means  investment,  and  investment 
means  the  direction  of  labor  toward  the  production  of  the  greatest 
returns,  returns  that  so  far  as  they  are  great  show  by  that  very  fact 
that  they  are  consumed  by  the  many,  not  alone  by  the  few.  If  I 
might  ride  a hobby  for  an  instant,  I should  say  we  need  to  think 
things  instead  of  words — to  drop  ownership,  money,  etc.,  and  to 
think  of  the  stream  of  products;  of  wheat  and  cloth  andf  railway  travel. 
When  we  do,  it  is  obvious  that  the  many  consume  them;  that  they 
now  as  truly  have  substantially  all  there  is,  as  if  the  title  were  in  the 
United  States;  that  the  great  body  of  property  is  socially  admin- 
istered now,  and  that  the  function  of  private  ownership  is  to  divine 
in  advance  the  equilibrium  of  social  desires — which  socialism  equally 
would  have  to  divine,  but  which,  under  the  illusion  of  self-seeking, 
is  more  poignantly  and  shrewdly  foreseen. 

I should  like  to  see  it  brought  home  to  the  public  that  the  question 
of  fair  prices  is  due  to  the  fact  that  none  of  us  can  have  as  much  as 
we  want  of  all  the  things  we  want;  that  as  less  will  be  produced  than 
the  public  wants,  the  question  is  how  much  of  each  product  it  will 
have  and  how  much  go  without;  that  thus  the  final  competition  is 
between  the  objects  of  desire,  and  therefore  between  the  producers 
of  those  objects;  that  when  we  oppose  labor  and  capital,  labor  means 
the  group  that  is  selling  its  product  and  capital  all  the  other  groups 
that  are  buying  it.  The  hated  capitalist  is  simply  the  mediator,  the 
prophet,  the  adjuster  according  to  his  divination  of  the  future  desire. 
If  you  could  get  that  believed,  the  body  of  the  people  would  have  no 
doubt  as  to  the  worth  of  law. 

That  is  my  outside  thought  on  the  present  discontents.  As  to  the 
truth  embodied  in  them,  in  part  it  can  not  be  helped.  It  can  not  be 
helped,  it  is  as  it  should  be,  that  the  law  is  behind  the  times.  I told 
a labor  leader  once  that  what  they  asked  was  favor,  and  if  a decision 
was  against  them  they  called  it  wicked.  The  same  might  be  said 
of  their  opponents.  It  means  that  the  law  is  growing.  As  law  em- 
bodies beliefs  that  have  triumphed  in  the  battle  of  ideas  and  then 
have  translated  themselves  into  action;  while  there  still  is  doubt, 
while  opposite  convictions  still  keep  a battle  front  against  each  other, 
the  time  for  law  has  not  come;  the  notion  destined  to  prevail  is  not 
yet  entitled  to  the  field.  It  is  a misfortune  if  a judge  reads  his  con- 
scious or  unconscious  sympathy  with  one  side  or  the  other  prema- 
turely into  the  law,  and  forgets  that  what  seem  to  him  to  be  first 
principles  are  believed  by  half  his  fellow  men  to  be  wrong.  I think 
that  we  have  suffered  from  this  misfortune,  in  State  courts  at  least, 
and  that  this  is  another  and  very  important  truth  to  be  extracted 
from  the  popular  discontent.  When  20  years  ago  a vague  terror 
went  over  the  earth  and  the  word  socialism  began  to  be  heard,  I 
thought  and  still  think  that  fear  was  translated  into  doctrines  that 


! 


SPEECH  OF  MR.  JUSTICE  HOLMES.  5 

had  no  proper  place  in  the  Constitution  or  the  common  law.  Judges 
are  apt  to  be  naif^imple-minded  men,  and  they  need  something  of 
Mephistopheles.  We,  too,  need  education  in  the  obvious — to  learn 
to  transcend  our  own  convictions  and  to  leave  room  for  much  that 
we  hold  dear  to  be  done  away  with  short  of  revolution  by  the  orderlv 
change  of  law.  ^ 

I have  no  belief  in  panaceas  and  almost  none  in  sudden  ruin  I 
believe  with  Montesquieu  that  if  the  chance  of  a battle— I may  add 
the  passage  of  a law— has  ruined  a State,  there  was  a general  cause 
at  work  ^at  made  the  State  ready  to  perish  by  a single  battle 
or  law.  Hence  I am  not  much  interested  one  way  or  the  other  in 
the  nostrums  now  so  strenuously  urged.  I do  not  think  the  United 
States  would  come  to  an  end  if  we  lost  our  power  to  declare  an  act 
of  Congress  void  I do  think  the  Union  would  be  imperiled  if  we 
could  not  make  that  declaration  as  to  the  laws  of  the  several  States 
tor  one  in  my  place  sees  how  often  a local  policy  prevails  with  those 
who  are  not  trained  to  national  views  and  how  often  action  is  taken 
that  embodies  what  the  commerce  clause  was  meant  to  end.  But 
i am  not  aware  that  there  is  any  serious  desire  to  limit  the  court’s 
power  in  this  regard.  For  most  of  the  things  that  properly  can  be 
called  evils  m the  present  state  of  the  law  I think  the  main  remedy 
as  lor  the  evils  of  public  opinion,  is  for  us  to  grow  more  civilized.  ' 
n 1 am  right,  it  will  be  a slow  business  for  our  people  to  reach 
rational  views,  assuming  that  we  are  allowed  to  work  peaceably  to 
that  end.  But  as  I grow  older  I grow  calm.  If  I feel  what  are  per- 
haps  an  old  mans  apprehensions,  that  competition  from  new  races 
will  cut  deeper  than  workmgmen’s  disputes  and  will  test  whether  we 
can  ang  together  and  can  fight;  if  I fear  that  we  are  running  through 
the  world  s resources  at  a pace  that  we  can  not  keep,  I do  not  lose  my 
hopes,  i do  not  pm  iny  dreams  for  the  future  to  my  country  or  even 
to  my  race;.  I think  it  probable  that  civilization  somehow  will  last 
as  long  as  I care  to  look  ahead — perhaps  with  smaller  numbers,  but 
perhaps  also  bred  to  greatness  and  splendor  by  science.  I think  it 
not  irnprobable  that  man,- like  the  grub  that  prepares  a chamber  for 
the  winged  thing  It  never  has  seen  but  is  to  be,  that  man  may  have 
cosmic  destinies  that  he  does  not  understand.  And  so  bevond  the 
vision  of  battling  races  and  an  unpoverished  earth  I catch  a dreaming 
glimpse  ol  peace.  ^ 

The  other  day  my  dream  was  pictured  to  my  mind.  It  was  evening. 

I was  walking  homeward  on  Pennsylvania  Avenue  near  the  Treasury, 
and  as  I looked  beyond  Sherman’s  statue  to  the  west  the  sky  was 

crimson  from  the  setting  sun.  But,  like  the 
ftnm  m Wagner  S opera,  below  the  sky  line  there  came 

from  little  globes  the  i^llid  discord  of  the  electric  lights.  And  I 
m .^dtterdammerung  will  end,  and  from  those 
globes  clustered  like  evil  eggs  will  come  the  new  masters  of  the  sky. 

It  is  like  the  time  m which  we  live.  But  then  I remembered  the  fai4 
that  i partly  have  expressed,  faith  in  a universe  not  measured  by  our 
fears,  a universe  that  has  thought  and  more  than  thought  inside  of  it. 

^h  ^\h  sunset  and  above  the  electric  lights,  there 


o 


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